Science, writing, reason and stuff

The authors’ copyright dilemna

There was a bit of a shuffle in the corner of the blog-o-sphere I inhabit this last week. An author reported that she’d been pinged for using a photo on her blog which she’d found via Google but which, it turned out, was copyright – and the photographer chased her for it.

The photographer was correct in law, and the blogger pointed out that a lot of the mythologies circulating about ‘fair use’ are just that – myths.

Even so, I got the impression the photographer was being unreasonable; he’d got his take-down, but went for compensation – and once lawyers start getting involved, any return the copyright owner might get is likely to vanish in fees. Sure, the photographer had a right to pursue; but the blogger hadn’t infringed deliberately.

Writers need to think about this. We create intellectual property. What happens if it’s stolen? Is it a matter of honour and pursuing the letter of the law to its end irrespective of cost, or should we focus on practical outcomes? I thought I’d share my experience of having my stuff ripped off.

The most common infringement of my intellectual property involves one book – Quake – Hawke’s Bay 1931 (Reed, Auckland 2001, 2nd ed 2006). For some reason it’s been viewed as public property by readers. It isn’t, of course.

I had to take copyright action when this book of mine was infringed.

The cheekiest was a high school teacher who wrote to me after photocopying part of my book. He wanted to take my material – which he’d got for nothing by borrowing the book from the library – and use it as part of a resource he was building to sell for his own profit. To this day I don’t know whether he was being disingenuous. I declined. At least he asked.

Another time I found an article taken word-by-word from one of my Quake chapters. By contract I have to advise my publishers if I discover my copyright’s been infringed. I did. Their response? They wouldn’t act because the loss of income from the theft wasn’t material.

I was free to pursue it myself at that point, but the same calculation applied. It would have cost me more – a lot more – than any compensation I’d have been able to get.

So I found myself in a position where I was in the right, where my copyright had been infringed – but where I couldn’t do anything about it. Other than write to the offending author, which I did, politely. He was very contrite about it, too, and offered to take me out to lunch. He hadn’t really lost me income from his infringement, I was satisfied it had been due to incompetence on his part, he’d made nothing out of if himself either, he’d apologised – and that was a reasonable answer as far as I was concerned.

The main infringement of my copyright material is by Google, who have taken books I’ve written that are still in print, and scanned them without permission. That is illegal under New Zealand law (whether it is republished or not) and, depending on how things go, it’s got potential to reduce any income I receive from my intellectual property – why would people buy it from a shop if they can download it for nothing from Google?

The problem is that Google might actually cost me income, and yes I do need to pursue that – but the issue is the practical side of enforcement. I could initiate proceedings in a New Zealand court, but the local intellectual property law firm charges around $4000 just to issue an opinion. That’s without hiring one of their solicitors to represent me. And it’s more complex than that, too, because the intellectual property rights for around 90% of my back-list are licensed, by contract, to two of the ‘big six’ publishers, who have their own policies towards the Google program. In practise I’m going to have to wait on US court cases to work through, a process likely to take years, and then accept whatever class settlement comes out of it.

If I had the money to go after every person who’s pirated a copy of my book… I would be flat broke. Most of the companies that pirate my work aren’t in the US, so the laws don’t apply. I estimate that I lost around $30,000 last year to pirates. I kept a tally for a while of how many copies had been illegally downloaded. I don’t keep track of that anymore and I don’t send take down notices anymore. It’s an absolute waste of my time. I make more money by writing and publishing new material. It’s a shame because I already price my work at a steal. I’m not an author/publisher who prices my work at $9.99 or more. But that won’t stop people. Maybe one day I’ll pick back up the torch and actually take people to court, but not today.

It sounds like you’ve had a very similar experience to me. My problems have all been in the print world, but some of my Penguin titles are out now on Kobo, and I do wonder how easily they’ll get copied, and how much that will cost me (and my publishers) in lost licensing. I know they have DRM, but that always gets broken. I have heard it said that this sort of thing is free advertising – and to some extent it is. But after a while, it isn’t. It just means the author can’t fill their larder and the stomachs of their dependent family.

In another lifetime (i.e., “it’s a long story”) I worked for an attorney. That was pushing twenty years ago, and back then I pretty much figured that most people who wanted to sue when the amount in question was $10,000 US or less (which was a jurisdictional amount that required you to go to a higher-level court) you were just about better off pursuing extra-judicial means of enforcement or collection, and for the reason you note above: by the time you pay legal fees, the attorneys/barristers/solicitors are the only winners. It makes one wonder if, at some point a few years back, the Google legal staff sat around debating what might happen if they infringed the copyrights of (insert likely number here) authors/artists/etc. “Well, sure, class action is a possibility,” they might have shrugged. “But we can probably fight that. I mean, most of those people don’t make enough money to be able to really fight it out in court, so if they can’t enforce their rights, what does it matter?”

Whether that happened or not, the principle is still there. Sometimes you can get attorneys’ fees, but (if I remember correctly, which I may not…twenty years, you know) if memory serves, you have to ask, they aren’t awarded automatically by the court. Fees are only awarded to the successful plaintiff.

I wouldn’t want to be seen as trying to dissuade anyone from pursuing appropriate legal remedies, but find an attorney who will be brutally honest about fees right up front. If they say something that’s the semantic equivalent of “we can discuss that later” — RUN. And DON’T SIGN ANYTHING!

Absolutely true! I had basically the same advice about the worth of suing people years ago from a lawyer I knew personally. He was a former High Court Judge and Solicitor General of New Zealand – he knew I’d been wronged, which was why I asked him. I was seriously contemplating court action – he told me only the lawyers would get anything, and when someone of that experience, calibre and capability gives you advice… boy do you listen!

Thank you for such a thoughtful post on this subject (including the recent author experience). Just watching the reaction has been interesting, and your post is the only one I’ve seen that seems to get to the heart of the matter.

I don’t know what I would do but what I hope is that I would have your sensible and practical response and approach. It just seems that Internet citation of others’ words/works needs to be clarified, as “fair use” does not seem to be understood or perhaps it is not sufficient. I don’t know what is the prevailing wind but it is a wind that blows more and more.

We have such an opportunity with the Internet to communicate with each other and share our work but then maybe what I’m really talking about is how we treat each other, although I’m really not trying to twist or change the subject but that’s where I see it.

For some people, the copyright issue really involves ignorance; for others, it is a much darker issue, I suspect.

What I find iniquitous is the fact that an incidental or unintended transgression can be stomped on – and successive governments are introducing ‘guilt on accusation, no defence’ copyright laws. Yet individual authors have no real ability to stop their own intellectual property from being stolen, at the cost of their income.

At the broadest level it is, of course, indicative of the inequities of power that have riddled so much of human history. This is just another one.

My own take is that the current furore is symptomatic of new technology. Older laws and thinking haven’t caught up – in particular, we’re still using licensing systems from times when it was hard to copy something. Today it’s easy to copy. So we need a new paradigm that lets the creators of intellectual property receive due value – without criminalising part of the consumer base.

It will shake down eventually, and I hope equitously – one must, I think, have SOME faith in the basic decency of human nature even if societies occasionally drop into witch-hunting mode from time to time. But the problem for those of us who sell our intellectual property as a way of making a living will be how to survive until that happens.

Lots of good advice in your post and the comments. I think part of the problem is that many people are used to the Wild West days of the internet, when copyright holders were less savvy and there were less means available to catch our those who stole content.

Nowadays though it is easy to search by images or content. A photographer who has been burned once too many times can easily do a search to see who is using his/her images. In fact it is some of the largest image rights holders in the world that are driving a lot of this technology. For example check out http://www.picscout.com

You are completely right when you say there are many myths flying around regarding “Fair Use”. The vast majority of “Fair Use” claims that I see would almost certainly fall over if tried in court as few people have any clue what the actual law says. What frustrates me is when the big guys who know better blatantly disregard copyright law and take the gamble that they won’t be caught out – and as you’ve pointed out it is often the independents who lose out.

Yes, I’ve posted just today on someone’s notion that there are ‘no laws’ against using writing fan fiction and posting it, providing there’s credit to the original author. Wrong. And certainly in New Zealand law, the ‘fair use’ component is extremely limited – there is a facility to allow photocopying parts of a work for personal research, and the only other use-without-asking I’m aware of involves the right of book reviewers to copy portions of what they’re reviewing. In practise, there’s no way any reviewer can copy more than a line or so.

I still have clear recollection of the late Peter Munz, who was one of my lecturers at VUW in the early 1980s, grinning all over his face and informing the class that he was giving them formal permission to photocopy the whole of one of his books, which was out of print. Half the students thought he was joking. But he wasn’t.

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